St. Louis Sanitary Co. v. Reed

• Decision Date: 02 December 1913
• Citation: 161 S.W. 315,179 Mo. App. 164
• Parties: ST. LOUIS SANITARY CO. v. REED.
• Court: Missouri Court of Appeals

161 S.W. 315

179 Mo. App. 164

ST. LOUIS SANITARY CO. v. REED.

St. Louis Court of Appeals. Missouri.

December 2, 1913.

1. MONEY RECEIVED (§ 18)—EVIDENCE—BURDEN OF PROOF.

In an action for money had and received by defendant to plaintiff's use, where defendant pleaded that such money was paid him by plaintiff as compensation for services, and was not received on any other account whatsoever, it was error to hold that the burden of proof was, at the outset and by the pleadings, upon the defendant; this ruling losing sight of the distinction between the burden of proof and the preponderance of the evidence.

2. MONEY RECEIVED (§ 1) — NATURE AND GROUNDS OF ACTION.

An action for money had and received lies for money which, in equity and right, defendant ought to refund, for money paid by mistake, or got through imposition, express or implied, or an undue advantage taken of plaintiff's situation, contrary to laws made for the protection of persons under the circumstances, and is favored.

3. MONEY RECEIVED (§ 17)—PLEADING—PETITION.

The petition in an action for money had and received, unless on an account, must usually be special, setting forth the relation of the parties and the contract or wrong by means of which the money was received; and hence the petition in an action to recover money which defendant claimed was paid him by plaintiff for services should therefore set forth the relation of the parties and the contract or wrong out of which the right of action arose.

4. PLEADING (§ 367) — MOTIONS TO MAKE DEFINITE AND CERTAIN.

The failure of the petition in an action for money had and received to set forth the relation of the parties, the contract, or the wrong out of which the cause of action arose could have been reached by motion to make it more definite and certain, if not by demurrer.

5. CORPORATIONS (§ 308)—OFFICERS—RIGHT TO COMPENSATION.

One who, though he was known at one time as secretary and treasurer, and at another as treasurer, of a corporation, was neither a director nor a stockholder, but a mere hired employé, could recover the reasonable value of his services, if rendered at the request, by the direction, or with the knowledge of the company's officers, directors, or managers, and accepted by them, and not voluntarily rendered, without expectation of reward, notwithstanding a resolution of the board of directors that all salaries should end with the end of the then current year, since the rule that officers and directors of corporations may not charge for services, unless founded on a resolution of the board or provided for in the articles, constitution, or bylaws, does not apply to one who is neither a director nor stockholder; and hence, though the introduction of such resolution prima facie deprived him of any claim to salary, he should have been permitted to show that he did the work with the consent, on the employment, and with the knowledge of the company's officers and directors.

Appeal from St. Louis Circuit Court; Chas. Claflin Allen, Judge.

Action by the St. Louis Sanitary Company against William F. Reed. From a judgment for plaintiff, defendant appeals. Reversed and remanded.

Morton Jourdan, of St. Louis, for appellant. Chester H. Krum, of St. Louis, for respondent.

REYNOLDS, P. J.

The petition, after averring the incorporation of the plaintiff, charges "that the defendant is justly indebted to the plaintiff in the sum of $1,600 for so much money had and received to the use of the plaintiff between May 1, 1907, and May 1, 1910, to-wit." Here follows an itemized statement charging $50 as received May 1, 1907, and on the 1st day of each succeeding month to and including December 1, 1909. The petition continues: "That payment of the said sums and the said aggregate sum of $1,600 received as aforesaid by the defendant to the plaintiff, has been duly demanded of defendant by the plaintiff and by him refused." Judgment is demanded for that sum and costs.

A demurrer was interposed to this and overruled. As plaintiff answered over, it is not necessary to notice this. The answer, after denying each and every allegation of the petition, "except such as are hereinafter admitted," denies that defendant is indebted to plaintiff in the sum of $1,600 or in any other sum whatsoever. It admits that on the dates alleged, defendant did receive of plaintiff the sums therein set out, aggregating $1,600, "which said moneys were paid him by the plaintiff, and received by the defendant, as his compensation for services rendered to the plaintiff, at its instance and request, during the time and period aforesaid, as secretary and treasurer of said plaintiff corporation; and that said sums and compensation were reasonable for the services rendered; and that said sums were not received on any other account whatsoever."

There was a reply which denies that the moneys mentioned in the petition and answer were moneys paid defendant by plaintiff, and "denies that they were received by the defendant as his compensation for services rendered to plaintiff at any time either as secretary or in any other capacity. It alleges that the said moneys were received and had by the defendant as alleged in the petition."

Trial to the court, a jury having been waived. At the outset, counsel for plaintiff asked the court to rule that the burden of proof was on defendant under the pleadings. The court so ruled, defendant excepting.

Thereupon defendant offered himself as a witness and testified that he had been secretary and treasurer of plaintiff corporation from April, 1905. He was such by appointment of the board, but was not a member of its board of directors nor a stockholder in the company. He testified that when he turned over the books and papers and money of plaintiff, after December 31, 1908, he accounted for and paid over to his successor all moneys in his possession other than the $1,600 here involved. Counsel for defendant offered to introduce evidence tending to prove the reasonable value of the services defendant had performed for the plaintiff for the period covered, and that the $1,600 defendant had retained, had been retained with the approval and consent of the president of the company, and was on account of services he had rendered as secretary and treasurer of the plaintiff corporation while its business and affairs were being wound up. This line of testimony was all objected to and excluded on objection of plaintiff's counsel, defendant duly excepting. On cross-examination counsel for plaintiff, identifying the books of the corporation, read from the minutes of the proceedings of the board this: "Special meeting of the board of directors duly called, held April 25th, 1905; present, Messrs. Campbell, Garnett and President Blakely. The minutes of the last meeting were read and approved. * * * Ordered that the superintendent's salary be reduced one-half; that the secretary be laid off and that the treasurer be empowered to act as secretary, his salary for the two offices being fixed for the present at $100 per month." Defendant testified that he had been elected treasurer on the 24th of March, 1904; that at that time his salary as treasurer commenced April 1, 1904, and was fixed at $1,500. He also identified an entry in the minutes as in the handwriting of the president, who had signed the minutes, the entry of date November 16, 1906: "It was ordered also that salaries end with the end of the present year, as well as all other expenses that can be controlled." Asked if he was present at that meeting, witness said he was not. On redirect examination, the witness was asked by his counsel, if, after the date of that meeting, he had continued to discharge his duties as secretary and treasurer of the company, up to January 1, 1909. He answered that he had, ...